Author: redheadedlaw

Standard Mutual Injunctions Can Make Your Gun Owning Client a Federal Criminal!

Written by redheadedlaw on August 22, 2014. Posted in Divorce.

Standard injunctions routinely imposed in family cases in Texas can cause our clients to violate ‘The Brady Bill’, 18 U.S.CA § 922(g).

The mutual injunctions routinely used in divorce cases in Texas include standard language prohibiting the use or threatened use of violence by one party to the divorce case against the other party. Therefore, it would appear that anyone subject to such an injunction in a divorce case is prohibited from possessing a firearm, even if no domestic violence has ever occurred or been threatened.

In U.S. v. Emerson, 270 F.3d 203 (5th Cir. 2001), the husband, Dr. Emerson, owned a pistol, which he had purchased a year earlier. Dr. Emerson never got rid of the pistol and federal grand jury returned a five-count indictment against him.

The Fifth Circuit followed a literal reading of the statute, which states only that the Court must explicitly forbid the use of threats or violence against a spouse or minor child. The court refused to read into the statute a requirement that there be a finding of abuse or danger of abuse. The Court of Appeals reversed the trial courts dismissal and remanded the case to the lower court for prosecution.

The Fifth’s Circuit interpretation of 18 U.S.C. § 922(g) makes clear that it a federal criminal offense to possess a firearm while under an injunction, issued after notice and hearing, which contains the standard violence/harassment language which is included in almost all of the mutual injunctions and temporary orders in divorce cases. Given that almost half the households in Texas contain at least one gun, this decision is one all family lawyers must bear in mind when drafting temporary orders.

Here is a quote from a leading Texas family law attorney: “…if injunctions are put in place as a result of a temporary hearing or alter a temporary hearing occurs, the party possessing the firearm is in violation of the federal statute. It would appear that this would be the case even if the parties waive a hearing and enter into agreed mutual injunctions or agreed temporary orders which include the *magic words” regarding threats or violence. Moreover, there are no statutory exceptions included in 18 U.S.C. § 922(g), so it would appear that once the injunction is in place, the ban on possession is absolute, until further order of the Court.

This ruling places on the family law practitioner the duty to explain the ramifications of the boilerplate injunction language. While previously, mutual injunctions could generally be agreed to with a minimal amount of controversy, now the lawyer must clarify whether or not his client possesses any firearms before agreeing to any injunctions containing such language. Should the client own a gun, it will be necessary to eliminate the language from the injunctions which would trigger the applicability of 18 U.S.C. § 922(g)…

For…those…whose occupations require that they be armed, such as law enforcement officers, avoiding having such an injunction imposed by the Court obviously takes on much greater significance, and care must be taken regarding any such injunctions.

Who Gets Fido?

Written by redheadedlaw on August 12, 2014. Posted in Divorce, Pets.

Even under the best of circumstances divvying up your assets and deciding who gets what in the divorce settlement can be difficult. But what about your beloved pet? To you, Fido may be family, but unfortunately Texas, along with most other states, considers pets property.

As property, Fido is subject to our community property laws. This means that if you and your spouse cannot hash things out ahead of time, the court will decide who gets the pet. In some rare instances, visitation with the non-custodial pet owner is awarded. And if your pet is valuable (such as a show animal or a horse), the court could actually require it to be sold and the proceeds divided. There is an exception—only if you can prove that your pet is actually your separate property. To prove this you have to be able to show that either you owned the pet prior to the marriage or that it was given as a gift or was willed to you during the marriage.

So what can you do to ensure the best fate for Fido? Keep him out of the divorce proceedings. This means doing everything you can to work things out with your spouse prior to court. If your spouse is resistant, perhaps shared custody/visitation rights can be agreed upon. If so, have your attorney draft up the mutual agreement for the court.

If you just can’t work things out with your spouse, you will have to fight for Fido. To help your case, ensure that your attorney is aware of how important your pet is to you and is sympathetic to your attachment. Then, be prepared to show the court why custody should be awarded to you. Here are some possible considerations:

You may be the custodial parent of minor children who have attachments to the pet.
You may be the one who has taken the most care of your pet, such as grooming, vet visits, and exercise.
You may have more time to exercise and play with your pet.
You may be healthier and better able to deal with the responsibility.
You may have more space.
You may be better able to afford pet related expenses.

There’s one more critical consideration. What’s really best for Fido? Despite how you feel and how attached you are, the key goal should be what is actually going to be best for the animal. So before you act at all, do some soul searching and then, when you’re ready to act, make sure your attorney is supportive but practical about both your and your pet’s best interest.

Above all, keep in mind that many judges are skeptical of battles over pets. Unless you have a judge that is a bona fide pet lover and owner, he or she may not take your concern seriously, which could result in a ruling not necessarily in your best interest or your pet’s. All the more reason to do your absolute best to resolve the issue with your spouse without involving the judge.

What is Probate?

Written by redheadedlaw on August 1, 2014. Posted in Probate, Wills.

What is probate? Essentially, it is the process by which the court distributes your estate after your death. If you have a will, the court will distribute according to that. If you do not have a will, the court will appoint an administrator (a type of executor) and distribute according to the descent laws of Texas.

The process is made much simpler and cheaper if you have a will. Texas probate is one of the simplest in the country thanks to what is called the “independent administration” of estates. Using this process, your named executor can distribute your estate with very little court supervision. There are other probate options in Texas, but this is the most common. If you do not have a will, there are many more costs involved because the court oversees the process.

Does everyone need a will? No. If you do not own real estate or have stock certificates or some other type of asset with a title, you may not need a will. Pension plans, 401(k)’s, financial accounts, and insurance proceeds do not pass through probate except in limited circumstances. Bank accounts can be handled outside the probate process by using a POD (pay on death) signed at the bank or by making another person a signatory on the account.

If you do have real estate or another item with a title, you probably are better off with a will, although the will may not have to be probated. Especially with real estate, you want to ensure that a deed is done as part of the probate process so that any real estate is conveyed and filed in the deed records. There are some alternatives to probate, such as small estate affidavit and heirship affidavit, which may be appropriate under certain circumstances.

Can you use a handwritten (holographic) will in Texas? Holographic wills are legal in Texas. However, if a handwritten will is not prepared according to Texas law, it may not be accepted by the probate court. If it gets thrown out, the outcome may not be what you wish as far as how your estate is distributed.

In the end, you want to ensure that your loved ones are not left with the complicated and messy task of dealing with your estate while trying to follow through on your last wishes and while dealing with your death. To be on the safe side, it is better to have a valid, up-to-date will prepared by an attorney who is advising you. Can you copy a form from the internet? Sure you can. But the fact is, a basic, simple will prepared by an attorney who answers your questions and advises you on Texas probate law is not costly. It is cost effective. To do otherwise is to be penny wise and pound foolish.

Spring Texas Divorce Lawyers

Written by redheadedlaw on July 17, 2014. Posted in Divorce, Texas.

Looking for Spring Texas Divorce Lawyers? Marivonne Essex and the Essex Law Firm are your go to source for all family law issues including divorce, child custody and child support as well as wills and probate.

Why does Marivonne stand out?

She makes it personal. Clients and their families are important to her. She has maintained some client relationships for the entire span of her 29-year career.
She keeps things simple. Her goal is to avoid protracted litigation and to secure the best settlement/decision in the shortest, realistic time frame.
She makes it easy. How? By maintaining close communication and using new technology, the Essex Law firm keeps your information, files, and appointments at your fingertips. This keeps you in the know and reduces administrative fees.

So, if you are looking for Spring Texas Divorce Lawyers, you need look no further for professional, personal, and affordable representation. Watch her YouTube video to meet Marivonne and then give her a call at 281-350-4104.

Lady Bird Deed

Written by redheadedlaw on June 27, 2014. Posted in Real Estate.

As a family law attorney, my areas of expertise include divorce, child support and other family related matters. I also do basic wills and probate. Occasionally, however, I have a family member or close friend who needs advice on another type of law. When that happens, I research the problem and give them my limited advice. That is how I learned about lady bird deeds, which offer a simple way to transfer real estate at your death without probate. Please note, I am not a real estate lawyer or an elder law attorney and this is not intended as legal advice. I’m simply sharing with you what I learned.

An elderly relative needed my help. He owns a small homestead where he lived until his recent move to a nursing home. He has been living on a small retirement fund and social security, and the homestead is his only asset. He has one son, who has disabilities. My relative wanted to deed the small homestead to his son without affecting my relative’s Medicaid or other government benefits. The solution was a lady bird deed, which gave my relative a life estate in the real property—meaning he could live there if he wished—and upon his death, title would transfer to his son without affecting any of his benefits.

Ronald Lipman’s column “State Your Case”, June 23, in the Houston Chronicle discusses the lady bird deed. If you have a similar situation or a relative who needs advice on lady bird deeds, contact a real estate or elder law attorney for advice.

Keeping Your Cool During Divorce

Written by redheadedlaw on June 17, 2014. Posted in Divorce.

Divorce can be overwhelming. Right now, your world may feel like it is upside down. Keeping your emotions in check and managing stress levels can be difficult. But not keeping a cool head may result in costly/long-lasting mistakes. It’s best to have a strategy for dealing with this emotional rollercoaster. Here are a few things to consider that can help you create a plan of action, not reaction.

Don’t rush

Of course, you want the situation to end as soon as possible. But making rushed decisions is not in your best interest. Settling for a poor deal just to get things over with may be disastrous. So, throughout the process, try to concentrate on responding not reacting. This means dealing with issues, demands, or requests in a logical manner, not an emotional one. So, before responding to anything, try taking some deep breaths and telling yourself to remain calm and peaceful.

Stay healthy

When stressed, it’s easy to forget very basic needs. Poor diet, lack of sleep, alcohol, use of tobacco or more all help fuel increased stress and reduce energy levels. Don’t get sucked in.

Take care of the inner you

Make it a daily habit to practice some type of stress-reducing activity, such as exercise, deep breathing, journaling, and/or meditation. Additionally, practicing your response to difficult situations can help prepare you for them. Try to visualize a confrontation with your spouse or a court scene and then visualize yourself remaining calm and peaceful throughout the event. Your “practice session” can help you face the real deal.

Be kind to yourself during the process

Take some “me time” after meeting with your attorney or spending time in court. Treat yourself to a massage or lunch with friends where the subject of the divorce and your spouse are off limits. If time or money is an issue, simply plan a walk or a soothing bath—just anything to treat yourself.

Stay busy and have some fun

The more you occupy your mind with things you like to do or with taking care of your family, the less time you have to think about the events taking place. So, make some plans for the movies, a game of tennis, a short trip, anything you like that will help counterbalance the negative emotions and issues.

Seek support

You don’t have to go it alone. Reaching out to friends, family, or religious advisers and talking through your feelings and emotions can be a big help. But, if you cannot stop thinking about the divorce or are getting too angry or too depressed, consider outside help. A therapist can help you deal with your emotions, teach you how to deal with your ex or your family, and show you how to remain calm during stressful situations.

Accept the reality of the situation

You cannot change the facts; divorce is messy and the process is not perfect. It’s going to take some time and a lot of energy. But if you work at keeping your head and take care of yourself, that energy does not all have to be negative. You may just begin to realize that regardless of where you are in the process, you are already on your way to a new beginning.

Ten Common Divorce Misconceptions

Written by redheadedlaw on June 3, 2014. Posted in Divorce.

Most of what we know about divorce either comes from friends and acquaintances who have been through the process or the high-profile celebrity cases we hear about through the media. What you don’t know about divorce can cost you—either in additional time, money, or stress. Here are some of the most common misconceptions about the process.

1. I Can File for Divorce Whenever/Wherever I Like

Not true. In Texas, one spouse has to have been a resident of the state for a continuous six-month period. In addition, one of the spouses has to have been a resident of the county where the divorce is filed for at least 90 days.

2. Divorce Is Incredibly Expensive

Thankfully, the costly cases we hear about through the media are not the norm. If both spouses try to amicably agree on who gets what and do not depend on the court for every decision, the fees are manageable. If things do not go smoothly, mediation can be a wise choice to shorten resolution time and help curb escalating court/attorney fees.

3. No-Fault Divorce Is Faster and Cheaper

No-fault divorce in Texas means that the parties have agreed that they can no longer live together as husband and wife and there are no fault issues such as adultery. Yes, a no-fault divorce can take as little as two months once it’s on the court calendar. However, this is only true if both parties can come to a timely agreement on the division of assets and the custody and support of any children of the marriage. If the marital assets are many/complex, and there is no agreement as to how to divide them, or if there is a dispute over children’s issues, then a no-fault divorce can become as long and drawn out as an at-fault divorce. Divorce is a process. Any issues that arise can add time and expense to this process.

4. Marital Assets/Debts Are Split 50/50

Actually, the court hopes every couple will appear before it having already agreed to the division of assets and debt. But in tried cases, that is highly unlikely. So, the court looks at what is fair and equitable, which usually does translate into an approximate 50/50 split of the assets and liabilities as a whole. This means, for example, the judge may assign extra debt to one spouse but offset that with an award of more property. Or, one spouse may be permitted to remain in the marital home without having to make an equity payment to the other spouse, but then not be given an equal portion of a retirement/pension fund.

5. Mothers Almost Always Gain Child Custody

In the past, child custody was indeed biased in favor of the mother. In the last decade, however, the number of custody awards in which the dad is awarded primary custody has increased substantially. For most divorce situations where the parents cannot agree on custody issues, the court bases its decision on the best interest of the children, not the gender of the parent.

6. Spouses Who Make Less Money or Who Were the Stay-at-Home Parent Are Entitled to Alimony

There are no automatic provisions for post-divorce spousal support in Texas. Instead, the dependent spouse must request it in the divorce petition. The court makes spousal support decisions on a case-by-case basis. Considerations may include such things as skill set, education level, illness and disability as well as the length of the marriage. In fact, in Texas, post-divorce spousal support (also called maintenance) requires a marriage of at least ten years. If spousal support is awarded, whether as a lump sum or over time, the court intends for it to be a bridge of support for the dependent spouse, not a long-term solution.

7. Cheating Spouses Will Be Punished

While adultery may be the reason for the divorce, the judge usually does not take that into consideration when deciding child custody issues unless the adultery can be shown to have directly affected the children. As far as the division of marital assets, the court can indeed take into consideration “fault” issues such as adultery. Usually, however, the judge makes a property division decision he or she deems is a fair and equitable division of community assets.

8. At the End of a Case, All Inequities Will Be Adjusted

During the divorce process, which may be spread out over many months, one spouse may have over or underpaid the other. Both spouses may be told, or perhaps just assume, that adjustments will be made when the case is settled. But when a case is settled rather than being tried, the interim inequities can fall through the cracks. Make sure any inequities are addressed in your settlement.

9. I Can Always Reopen the Divorce Settlement at a Later Time

Divorce is a painful process and people are usually in a rush to just get through it. When they hear or read that in some cases the settlement can be reopened for issues related to custody, child support, etc., they often convince themselves that they will have certain recourse for change at a future time. This is not so for most settlements. In Texas, property division settlements should be considered set in stone. It is very difficult to change such a division unless fraud can be proved. Custody decisions run very close to being set in stone, although they are easier to overturn than property divisions. Child support, in most cases, can be changed after three years if the facts warrant.

10. I Don’t Really Need a Lawyer

This may be the most dangerous divorce misconception. Often, people try to get through the process on their own to save money. In the end, they may end up being taken advantage of/or harming their own cases. They may not understand the legal terminology or the intricacies of the process. While having an attorney is not a legal requirement, anyone considering divorce should see it as a necessity. It is cheaper in the long run to hire a good attorney than to try to get any settlement or court decision changed later.

Why Should I Opt for a Divorce Instead of a Separation?

Written by redheadedlaw on May 19, 2014. Posted in Common Law, Debt, Divorce, Property Division.

Often times, when a marriage goes downhill, spouses may opt to separate rather than divorce. In some cases, a separation can be beneficial due to financial reasons, or it can allow both sides time to decide if divorce should be the final resolution. However, in many cases, opting for the path of least resistance may actually be more detrimental in the long run.

One of the main risks a spouse takes when he or she agrees to separate instead of getting a divorce is that he or she no longer has any control or knowledge of how the other spouse is managing the marital assets. One spouse could be mismanaging funds or even getting into debt that could later be considered joint debt.

Another potential negative outcome of a separation is one spouse could lose his or her job or suffer another major financial shift that could lead to a substantial decrease in your divorce settlement amount. If individuals decide to get a divorce after years of separation, there is always a chance that the financial status of one spouse has changed, and divorce settlements will be based on the current financial status of both spouses.

In some cases of separation, one spouse will move out of the state or country without notifying the other spouse. This could make it difficult to officially receive a divorce, which will postpone custody decisions, divorce settlements, and other legal matters.

In the event that you meet someone new while you are still legally married, it could put a damper on your new relationship. While some people may be accepting of your situation, you run the risk of scaring someone off.

By opting to get a divorce, you make it clear to yourself and your spouse that you are prepared to move on with your life. Although there may be some cases where a separation makes sense, if you are in a marriage that no longer suits you for whatever reason, opting for a divorce will more than likely be the most logical choice.

Video Introduction

Written by redheadedlaw on April 22, 2014. Posted in Uncategorized.

Marivonne Essex discusses the benefits of choosing The Essex Law Firm for your family law issues.

Recognizing Signs of Child Abuse and Neglect

Written by redheadedlaw on April 7, 2014. Posted in Child Abuse, Child Neglect, Parental Rights.

Anytime you leave your child in the care of someone else, a part of you is always concerned with whether or not they are being cared for properly. This is especially true when your child is not old enough to speak, or can clearly tell you what is going on while they are away.

When your circumstances make it necessary for you to take your child to day care, or hire a babysitter, it important for you to be observant of the way your child is being handled while you are there.

It is also important to regularly examine your child physically, as well as take note of their mood when you are taking them to day care, and their mood after you pick them up. If your child suddenly becomes sad or reclusive when the baby sitter arrives, or when you arrive at day care, it could be a sign of deeper issues.

Some of the most common signs of child abuse or neglect include:

Unexplained changes in behavior
Withdrawal
Cuts and scrapes
Bruises
Burns
Feelings of fear

In some cases, children can be abused or neglected while visiting a parent as part of a custody agreement. This can be extremely detrimental to the child because the child is being harmed by someone that he or she trusts. If it is discovered that your child is being abused or neglected by the other parent, you may be able to have the abusive parent’s visitation rights stripped or restricted. It is, however, difficult to prove abuse without hard evidence such as medical records. Keep in mind that the child can’t tell the court what is going on and you cannot report to any court what the child says. If you suspect abuse, take your child for a medical exam immediately. Even a day’s delay may hamper proof in restricting the other parent’s visitation rights.

When your child’s safety and well-being is threatened, it is important to take action immediately. With the help of a family law attorney in Spring, TX, you can get an accurate assessment of your legal options, and pursue justice for the wrongs that have been committed against your child.